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The Egyptian Organization for Human Rights report |
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4/3/2002
report
" Victims without rights "
The EOHR's report on torture in Police Stations and Detention Centers in Egypt
First: The legal texts that incriminate torture and protect the right of body safety mentioned in the International Conventions of Human Rights and the Egyptian Legislation: The definition of torture: The definition of torture is stated in Article 1 of the International Conventions against Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the UN general assembly on 9th December 1975
The international Convention of human rights ratified by Egypt (Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights) contain many articles which condemn torture and these articles became as an internal law by virtue of article 151 of the Egyptian Constitution. The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on December 10, 1948 , asserts the right of personal safety and the respect of humanity. Article 3 of The Universal Declaration of Human Rights states that "Everyone has the right to life, liberty and security of person". Article 5 of the same declaration states that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Article 7 of the International Covenant on Civil and Political Rights Adopted by the UN General Assembly of 16 December 1966, states that " No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation." Article 10/1 of the same covenant states that "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person". Article 2/1 of the International Conventions against Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment stipulates, " Each state party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in territory under its jurisdiction." Article 12 of the same convention states that " Each state party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction." Article 13 states that "Each state party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complaint and witnesses are protected against all ill-treatment or indication as a consequence of his complaint or any evidence given." Article 2/2 of the same convention states that "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture". Article 2/3 states "An order from a superior officer or a public authority may not be invoked as a justification of torture ". Article 15 states that "Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made". Article 1 of the Code of Conduct for Law Enforcement Officials, adopted by General Assembly resolution 34/169 of 17 December 1979 , states "Law enforcement officials shall at all times fulfil the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession". Article 2 states that "In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons". Article 3 states that "Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty". Article 5 states that "No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment ". Article 6 states that "Law enforcement officials shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required". EOHR monitored and documented the following case in which the victim was forced under severe torture to confess that he committed a crime he did not commit. This story took place in 1998 as follows: On 30/7/1998, the family of Iman Fesal Farag ( 15 years old girl) who live in "Qabeel " Village in Damnhour , reported to the Electricity Police Station " Ghazal Zawya" that Iman was kidnapped by Zenhum Mohamed Badr, a conscript. Accordingly, the Captain Mostafa Hassan Kasem, arrested Zenhum and tortured him to force him to confess to the killing of a girl. In this regard, his family said he was hanged on a tree which was in the police station while his hands and legs were tightened and electricity was connected to sensitive parts of his body. Torture continued for 5 hours till the victim lost consciences. Thus, to escape torture , Zenhum said that he kidnapped the girl and threw her in a hole in the basement with the help of his family. Consequently, the members of his family were arrested and the house was inspected but no traces of the corpse were found. After that Zenhum was presented to the appeals' judge and he confessed that he committed the crime for fear of being tortured again and so he was put in jail for 45 days pending investigations. After 26 days, it was found that the girl was still alive when the man she worked for as a servant knew the story and took the girl to Damanhour Prosecution to save Zenhum. Thus , a resolution was issued to set Zenhum free and to let him continue his work as a conscript in " the Electricity of Zawyet Ghazal". It is clear that this case is an example of the confessions which was taken under torture and threat and so it shall not be regarded. It is known that the International Covenants preclude using torture to force people to confess and to get information. Article 14 of the International Covenant on Civil and Political Rights states that no one shall be compelled to testify against himself or to confess guilt. And article 7 states that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation". 2- The Egyptian law and Legislation: EOHR monitored in this report the existence of some legislative deficiency which is that the old laws have been followed and the new ones of an exceptional nature introduced and forced into the legal system of Egypt. The Egyptian laws is characterized by giving precedence to the considerations of safeguarding security and safety over the values of justice and equality among citizens. Out of the cases contained in his report, we will note that the police are committing grave violations of citizens' rights, and yet the existing legal system does not prevent the existence of such abuses, and they are often even legitimized. The Egyptian Constitution as well as the criminal procedure law assert the dangerous of torture . Article 42 of the constitution states that "Any citizen arrested, detained or whose freedom is restricted shall be treated in a manner concomitant with the preservation of his dignity. No physical or moral harm is to be inflicted upon him. He may not be detained or imprisoned except in places defined by laws organizing prisons. If a confession is proved to have been made by a person under any of the aforementioned forms of duress or coercion, it shall be considered invalid and futile". Article 57 of the constitution states that "Any assault on individual freedom or on the inviolability of private life of citizens and any other public rights and liberties guaranteed by the Constitution and the law shall be considered a crime, whose criminal and civil lawsuit is not liable to prescription. The State shall grant a fair compensation to the victim of such an assault ". Article 41 of the Criminal Procedure law states that " No one shall be arrested except by a permit by the designated authority and he shall be treated in a way that preserves his dignity and he shall not be harmed physically or psychologically". Article 126, 127, 129 and 282 of the penal code state the penal code states the sentences which shall be issued against civil servants, or public officer who committed torture or used violence against the defendants or others as follows: Article 126 states that " Each civil servant or public officer order torture or commit torture himself to compel a person to confess, he shall receive from three to ten years imprisonment sentence or a hard labor sentence and if the victim died, the perpetrator shall receive the ruling which is given to the person who commit an intentional murder". It is clear that article 126 of the penal code do not provide any protection to the mental or psychological safety of individuals from the actions of civil servants. In addition to it is in conflict with the provisions of the international convention against torture ratified by Egypt in 1986 and so it becomes part of the national legislation. The spread of the phenomenon against the defendants, the suspected people ,the people under preventive detention and the prisoners is not only used to compel persons to confess but also to take revenge after any act of violence or terrorism or to determine the political identity of the detainees or the prisoners. Article 129 of the penal code states that " each civil servant or public officer , and any person commissioned with a public service, resorting to cruelty with people, depending on his position, hence offending their dignity or inflicting physical harm on them, shall be sentenced to an arrest period of no longer than one year, or with a fine not to exceed L.E. 200 ". As for Article 282 of the penal code , the penalties reach the degree of a felony. However, the provisions have not differentiated between such actions happening by an individual against another, or by an authority against an individual. Penalty should have rather been strengthened in the latter case, as the representatives of the authority commit such crimes not in their personal capacities, but depending on their positions. Second: The Legal protection for the victims of torture: 1- The International Covenants and the Egyptian Constitution and Laws: In the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which was adopted by General Assembly resolution 40/34 of 29 November 1985, the Victims means: "persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power". Article 2 of the same declaration states that "A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term "victim" also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization". Article 3 states that "The provisions contained herein shall be applicable to all, without distinction of any kind, such as race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability". Article 4 states that "Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered". Article 8 states that" Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights". Article 11 states "Where public officials or other agents acting in an official or quasi-official capacity have violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimizing act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims." Article 12 states that "When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to: (a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes; (b) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization". Article 13 states that "The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including in those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm". In this regard , Article 8 of Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment states that "Any person who alleges that he has been subjected to torture or other cruel, inhuman or degrading treatment or punishment by or at the instigation of a public official shall have the right to complain to, and to have his case impartially examined by, the competent authorities of the State concerned. " Article 9 states" Wherever there is reasonable ground to believe that an act of torture as defined in article 1 has been committed, the competent authorities of the State concerned shall promptly proceed to an impartial investigation even if there has been no formal complaint". Article 10 states" If an investigation under article 8 or article 9 establishes that an act of torture as defined in article 1 appears to have been committed, criminal proceedings shall be instituted against the alleged offender or offenders in accordance with national law. If an allegation of other forms of cruel, inhuman or degrading treatment or punishment is considered to be well founded, the alleged offender or offenders shall be subject to criminal, disciplinary or other appropriate proceedings". Article 11 states" Where it is proved that an act of torture or other cruel, inhuman or degrading treatment or punishment has been committed by or at the instigation of a public official, the victim shall be afforded redress and compensation in accordance with national law". By comparing these with the Egyptian Legislation, the victim of torture present his complaint through the judicial way. However, the victim does not always take his right because this mechanism has many obstacles. Moreover, this way is often closed and the criminal disciplinary punishments are just theoretical forms because due to the Criminal Procedures Code , filing a case against an officer is faced by many obstacles because the only body that moves the case to the court is the public prosecution. Furthermore , the issuance of a disciplinary punishment against an officer must be done by a ministerial decree or by a decree from the competent authority such as the General Directorate for Inspection on the police officer according to law no.109 of 1971 concerning the police body. However, the punishment is weak which is inadequate with the crime of torture against the citizens. The procedures, which the victims of torture should go through to file a case against the perpetrators, are: 1- The victim presents a complaint to the public prosecution office that he was subjected to torture by an officer in the police station. Then the prosecution refer the citizen to the forensic medicine department to get a report on his /her case. 2- After receiving the report of the forensic medicine that the case is investigated after. 3- The case is transferred from the prosecution to the court according to the law of the criminal procedures after the consent of the General Attorney. 4- Punishing the public officer due to the articles of the law. 5- The victim has the right to civil compensations. Article 57 of the Egyptian Constitution states that any assault on citizens is a crime. Moreover, article 163 of the civil law states that any fault that result in harming others, the victim must be compensated by the person who committed this fault. The Egyptian constitution states that the criminal or the civil lawsuit shall not be dropped when a long time passes in the case of torture. Article 174 of the civil law "The followed is responsible for the misdeeds of his follower if this deed is done during service. The fellowship relation existed even if the followed has not chosen his follower in case that the followed has a leadership and supervision authority over the followed". Although of the existence of constitutional texts and civil law articles, which originate the compensation for torture, EOHR affirms that they are ineffective in bringing the perpetrators before justice even before the civil courts. In this regard, the constituency no.30 of Cairo Court for Appeals has issued its civil verdict no. 958 of the judicial year no.106, which stated that 25000 L.E must be given to the engineer, Abdel-Mohsen Hamoda, as a compensation for the torture of his son that led to the death at the police station of Kasrel-Nile in September 1985. The court has based its verdict on: The court approved of the previous verdict due to the medical reports, which proved the relation between torture and the death of the son. The representative of the State did not deny the assault on the victim by the State Security Investigation's officers and Kasr El Neel Police Station's officers. The assault was so severe to the extend that the victim was transferred to Kasr El Maadi hospital and the state Security Investigation body paid all the costs of the medical treatment. Thus there was a fault committed which is the first element of the elements of the neglecting responsibility of the ministry of interiors because he is accountable for the misdeeds of his employees due to article 174 of the civil law. It is clear also that the harm happened to the victim was a result of the officials' fault and so it resulted in the son's death. The brain CAT scanning test states that after the injury, the diagnosis was: Atrophy in the left side of the brain due to hydrocephalus. In addition to the medical report issued on 2/2/1989 by Dr. Mohamed Hafez El Atrouny- the psychiatrist in the Medicine faculty affirmed that the patient suffered from repeated increasing epilepsy along with increasing cerebral symptoms due to a head injury. This is also was affirmed in the death report and the CAT scanning test as they asserted that his head injury led to his brain injury which led to his death. The report of the above mentioned doctor stated that the victim suffered from severe epilepsy because of head injury and a concussion which finally led to cardiac and respiratory failure which consequently led to his death. Thus it is clear here that there is a relation between the head injury and the death of the victim. Therefore, the court based its ruling on Dr. Mohamed Hafez El Atrouny's medical report which stated that the death was due to cardiac and respiratory failure due to repeated and increasing epilepsy which finally led to the victim death. It is obvious from the above mentioned medical reports that there is a relation between the injury and the death as the injury led to the death. It is clear also that the victim was severely and harshly tortured without any reasons by the security officers and they deviated from their duty and mandate just to terrify and humiliate people . To recognize the seriousness of the torture inflicted upon the victim , we should examine what is the human being and his position with Allah (God), his homeland, and with his family. Firstly the position of Man with Allah, Allah creates human, makes him his successor in the earth, and promoted him over all his creatures even over the Angels, who were ordered to bow down to Aa'dam - the father of all humanity, and mandated all creatures to serve him. Secondly the position of human with his homeland is that the citizen is the most important element in every state. State works for the happiness of its citizen and keeping his humanity but when a state neglected or became unable to protect the citizen and his humanity, it loses the basic principle of its existence. So the constitution of every nation affirms the necessity of the protection of its own citizens and the punishment of anyone harms them, and so this proves that Man is very important in his homeland. The result of human struggle with the tyranny is The Universal Declaration of Human Rights, which is adopted by UN in 10/12/1948. Article 5 of the declaration states "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". In 16/12/1966, The General Assembly of United Nations adopted the international covenant on Civil and Political Rights, Thus each state which signed this covenant is responsible for protecting its citizens against ill treatment and torture by the law. Article 7 of this covenant states that: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. Article 9 states that "Everyone has the right to liberty and security of person" This is the position of Man in the international society. On the other hand, an Egyptian family is unable to get compensation for the harm as a result of the death of their man in Helwan Police station after he was tortured. This family is the family of Fath El Bab Abd El Monem Shabaan who was an employee in Helwan Iron and Steel Company - Arab Ghumeen - 94 El Seka El Hadeed Street- Helwan. On 15/8/1994 , a police force broke into his house and the café which he owned. Fath El Bab and Yasser Fath El Bab were arrested by an officer called Mohsen Badawy after the beatings of all the members of the family. He was arrested because of arguments and quarrel between him and a detective who worked in the police station. As soon as Fath El Bab and his son went to Helwan police station , they were subjected to torture as Fath El Bab was hanged on the cell of the police station and was tortured by all torture means although they knew that he had heart diseases . His wife begged to stop them but they did not listen to her and the officer ordered his men to rape her so she fled. Few hours later, Fath El bab died. The Forensic report says that Fath El Bab died because of severe beatings on his head and fracture in the vertebral column. Investigations were carried out in the case no. 36 of 1994 of Fath El Bab in Helwan prosecution and Captain Mohsen Badawy was detained and charged with the following: 1- Beatings which led to the death of victim. 2- Detaining a citizen without any legal basis. 3- Forging a prosecution decree. 4- Using cruelty against citizens. The hearings of the case was held and the criminal court issued its verdict .The Officer Mohsen Bedewy , the head of the Investigation Unit of El Wayli police station received one year suspended sentence and the rest of the defendants were acquitted. However, an appeal was filed against the verdict and the case is still in the cassation court till now. - The family has filed a case for civil compensation against the officer and against the minister of interiors because he is accountable for the behaviors of his men and responsible for the civil rights but no verdict is issued till now. - Furthermore, the family of Fath El Bab faced repeated harassment and pressure to give up the case against the officer as follows: - Breaking into the family house by a police force led by the officer Bahaa El Tahawi , the head of the investigation unit in Helwan Police Station. Arresting Samah Hamid Ali in her house on 4/5/2001 at 2:00 P.m and breaking the house furniture ordering the men to take off their clothes except what cover their male origin. They also took her to her son's house , arrested him ordering him to take off his clothes except what covered his male origin and took them to the street to humiliate them in front of the passengers. Then on 5/5/2001 Samah was set free but her son was detained for several days. - Breaking into the house of the family on 23/7/2001 by a police force led by the officer Bahaa El Tahawi without having the permission of the general deputy and they beat and cursed them without any reason . They also broke the furniture and the electric sets without apparent reason and threatened her sons to charge them with fabricated crimes. - On 29/8/2001 , the Detective Mohamed Lotfy from the investigation unit in Helwan Police station and his family and sons assaulted , have been beaten cursed the family of Fath El Bab to the extent that the detective tried to shot Samah by his gun. The assault continued to the following days. - These practices by the investigation unit of Helwan police station is a way to put pressure on the family of Fath El Bab to give up the case filed against the officer Mohsen Badawi . This case is the only way for the family to take revenge from the officers and the otthers who killed Fath El Bab. |
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